9911796707
TMI Blog1995 (8) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal, Bareilly Bench-II, Bareilly in Second Appeal No. 148 of 1991 (1974-75) whereby the Tribunal has partly allowed the appeal, maintained the tax liability, but exempted the applicant from payment of the interest on the amount of the tax. The applicant was a registered dealer under the Act and was carrying on business of purchase and sales of empty tins. For the assessment year 1974-75 the Sales Tax Officer imposed the tax liability on him by his order dated March 7, 1979, by rejecting the claim of the applicant that he had made purchases of the empty tins from different places like Kashipur, Ram Nagar, Haldwani, etc., within the State of Uttar Pradesh. His first appeal was dismissed but the second appeal was allowed by the Tribunal on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Judicial). The learned Tribunal partly allowed the appeal confirming the levy of tax, but deleting the levy of interest. The Tribunal also rejected the plea of limitation urged by the assessee. In this revision the learned counsel for the applicant has firstly contended that the assessment order passed in pursuance of the order of remand is barred by limitation of one year under section 21(4) of the Act. The Tribunal has also gone into this question. It has been found on facts that the remand order was passed by the High Court in S.T.R. No. 337 of 1987-1988. The Tribunal passed the consequential order under section 11(8) of the Act on May 9, 1989. The order passed by the Tribunal was served on the assessing authority on Jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was not able to make proper inquiries from the petty dealers from whom the assessee had made purchases during the assessment year 1974-75. The assessee had not furnished any other material before the assessing authority to prove the fact that the purchases were made by him from the petty dealers inside the State of Uttar Pradesh. The assessing authority therefore disbelieved the assessee and rejected his claim of purchases within the State and presumed that the purchases were made from outside U.P. and were liable to tax. He accordingly passed the impugned order of assessment. The learned Standing Counsel has invited attention to the provisions of section 12-A of the Act whereby the burden of proof has been laid on the assessee to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard has been given to the person whose particulars are disclosed by such dealer." A reading of the provision reveals that a rule of evidence has been laid down by the Legislature providing in the first place that a fact which is specially within the knowledge of the dealer has to be established by him. Thereafter, it contemplates that apart from the general provision, in cases which have been enumerated therein, the burden of proving the existence of circumstances bringing the case within one of the provisions (mentioned in section 12-A) shall be upon the dealer and further a statutory presumption shall be raised by the assessing authority about the absence of those circumstances. In other words, the assessing authority is under an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act and in the absence of proof the assessing authority was legally justified to raise a presumption that the turnover was liable to tax. The learned Standing Counsel cited another case of Bhola Nath Kesarwani v. Commissioner of Sales Tax, U.P. 1987 UPTC 1251. In this case the assessee filed a list of goods purchased but the purchases were not verifiable. The assessing authority raised a presumption that the purchases have been made from outside U.P. This Court confirmed the findings considering the legal position that if the assessee fails to discharge the legal burden of proof as enjoined by section 12-A of the Act, the assessing authority can raise a legal presumption to the contrary and pass the order of assessment imposing tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. Mr. Piyush Agarwal, learned counsel for the revisionist has submitted that in view of the peculiar facts and circumstances of this case and after the expiry of about 19 years, it may not be possible for the assessee to pay the entire amount of tax in lump sum and he therefore prays that the assessee should be allowed the facility of making payment of the tax in monthly instalments. I consider this request quite reasonable. Therefore the assessee can be directed to pay amount of tax in equal monthly instalments of Rs. 8,000 beginning with September 1, 1995, till the whole amount of tax is deposited. However in case the assessee fails to deposit a particular instalment on the due date, an interest will be charged in respect of that amou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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